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Case to ponder if illegals have U.S. citizens’ rights

Federal court mulling Fourth Amendment

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Jorge Esparza-Mendoza will spend 17 months in a federal prison and will then be deported to his native country of Mexico.

But his case will go on much longer than that, as the question of whether undocumented immigrants are entitled to constitutional rights win111ds its way through a federal appeals court.

On Tuesday, before handing down the 17-month prison sentence, U.S. District Judge Paul Cassell warned Esparza-Mendoza never to return to the United States.

"You're going to get in a lot of trouble if you do," the judge said. "Just don't come back."

Cassell allowed Esparza-Mendoza's case to go forward earlier this year, despite his finding that Esparza-Mendoza was illegally detained and, thus, illegally identified as a person not welcome in the United States.

But because he is an undocumented immigrant, Cassell also ruled Esparza-Mendoza is not entitled to Fourth Amendment rights against unlawful searches and seizures.

Defense attorney Benjamin Hamilton said Tuesday he plans to appeal Cassell's decision to the 10th Circuit U.S. Court of Appeals. However, he admits any decision likely will come too late to help Esparza-Mendoza.

Still, he said, it is necessary to pursue the challenge for what he believes will be a definitive ruling that all people, not just U.S. citizens, are subject to the constitutional rights set forward in the Fourth Amendment.

"The policy that the court has put in place is one that affects anybody of ethnicity," Hamilton said. "The appeal has to go forward."

Under Cassell's ruling, Hamilton said individual police officers would be left to make a determination of who is protected under the Fourth Amendment. The decision would be a subjective one, he said, and could be based on things such as appearance, accent and a person's mastery of the English language.

U.S. District Judge Ted Stewart is currently considering a similar case involving a man who has lived in the United States for more than 20 years but has never become a citizen. Mario Rubio-Cota has been deported three times and faces another ejection if Stewart determines the January traffic stop that led to his identification was legal.

Federal prosecutors have argued that even if the stop was illegal, Rubio-Cota isn't entitled to protection under the Fourth Amendment. Like Esparza-Mendoza, Rubio-Cota was not found to have committed a crime other than being in the country illegally.

E-MAIL: awelling@desnews.com